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How One Employee’S Complaint Can Lead to a Full Blown Investigation of an H-1B Employer’S LCA Records

12/30/2015

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by Cora-Ann Pestaina, Associate with ABIL member, Cyrus D. Mehta
The Insightful Immigration Blog

A recent U.S. Court of Appeals decision in Greater Missouri Medical Pro-Care Providers, Inc.ARB Case No. 12-015, ALJ Case No. 2008-LCA-26 (2014), is worth noting as it addressed the issue of how much latitude the DOL has to investigate an H-1B employer’s H-1B documents and records.

As background, an employer seeking to employ a temporary foreign worker in H-1B (also H-1B1 or E-3) nonimmigrant status must, as the first step in the petition process, file a Labor Condition Application (LCA) with the Department of Labor (DOL) and receive certification. The LCA is completed on electronic Form 9035 and submitted through the DOL’s iCERT system. The LCA collects information about the occupation including the occupational title, the number of immigrants sought, the gross wage rate to be paid, the starting and ending dates of employment, the place of employment, and the prevailing wage for the occupation in the area of intended employment. The LCA contains special attestation requirements for employers who previously committed willful violations of the law or for employers who are deemed to be H-1B dependent. The employer must also state that its employment of nonimmigrants will not adversely affect the working conditions of workers similarly employed in the area of intended employment. An employer is permitted to file the LCA no more than six months before the initial date of intended employment. See 8 U.S.C. § 1182(n)(1)ID); 20 C.F.R. §§ 655.730-733.

Once the LCA is filed, the DOL must approve it within 7 days unless the application is incomplete or obviously inaccurate. 20 C.F.R. §§ 655.740(a)(1)-(2). Within one day of the LCA filing, the employer must maintain a public access file accessible to interested and aggrieved parties. The file must be available at either the principal employer’s place of business or at the employee worksite. 20 C.F.R. § 655.760(a). An aggrieved employee has 12 months after the latest date on which an alleged violation was committed to file a complaint with the DOL Wage and Hour Division (WHD). 20 C.F.R. § 655.806(a)(5).

In Greater Missouri, the employer hired numerous physical and occupational therapists from the Philippines on H-1B status. As required, the employer filed LCA applications for the desired workers. One H-1B employee, a physical therapist from the Philippines, filed a complaint alleging that she had personally paid all the fees, including attorney’s fees, to file and to extend her H-1B status and that the employer failed to pay her during a nonproductive period of over one year when she was reviewing for her licensing exam. The employee also questioned whether the H-1B employer was legally permitted to charge her a fee for “breach of contract” due to her early termination of her employment.

Upon review of the employee’s complaint (forwarded to the DOL by the Missouri state regulators), the DOL treated it as an “aggrieved party” complaint and the DOL investigator concluded that there was “reasonable cause” to investigate the charge that the H-1B employer had attempted to require the employee to pay a penalty for ceasing her employment early. Based only on the determination that this one charge was worth investigating, the DOL investigator launched a full scale investigation and sent a letter to the H-1B employer requesting all of its H-1B documents and records. The DOL investigator also interviewed the aggrieved employee and the employer’s other H-1B workers.

Based on its investigations, the DOL found that the employer improperly failed to pay wages to employees who it had placed in nonproductive status (benched); made improper deductions from employee wages for H-1B petition fees; and required or attempted to require improper penalty payments from some employees for early termination. The employer was ordered to pay over $380,000 in back wages to 45 employees.

The employer fought back by requesting a hearing before an Administrative Law Judge (ALJ).  The employer argued that the applicable statute and regulations limited the DOL’s investigation to the specific issues of the complaint that was filed and only to that aggrieved party’s LCA. The employer also argued that the statute and regulations impose a 12 month time limit for investigating violations. However, the ALJ held that the 12 month time limit only refers to when a complaint can be filed and does not refer to the scope of remedies that can be meted out. The ALJ issued a decision ordering the employer to pay back wages, fees for illegal fee deductions and amounts to employees for illegally withholding paychecks.  When the ALJ failed to hold in the employer’s favor, the employer petitioned for review before the Administrative Review Board (ARB).

The ARB held that the DOL indeed had the authority to investigate alleged violations involving H-1B workers who did not file complaints but also held that violations that occurred outside of the 12 month period prior to the filing of a complaint are not actionable.  However, the ARB affirmed the order for employer to pay awards. The employer took the case up to the District Court which affirmed the ARB’s decision and payment of awards. The employer then appealed to the US Court of Appeals. The DOL did not appeal the District Court’s ruling that violations that occurred outside the 12 month period are not actionable.

In the end, the Court of Appeals held that the DOL’s initial investigatory authority is limited to the complaint that was filed and to those specific allegations and the DOL was not authorized to launch a comprehensive investigation of the employer based only on a single allegation by one employee. The Court of Appeals recognized that additional violations could come to light in the course of the DOL’s investigation of a single complaint and that the DOL may need to modify or expand its investigation based on reasonable cause. However, the Court of Appeals found that this was not how the investigation proceeded in the instant case. The Court of Appeals held that the awards cannot stand because the ARB’s finding of violations and the resulting awards were based entirely on the DOL’s unauthorized investigation of matters other than the allegation in the aggrieved party’s complaint. The US Court of Appeals reversed the judgment of the District Court.

While this was ultimately a victory for the H-1B employer and it is good to note that the DOL does not have sweeping authority to investigate allegations of violations that fall outside of the 12-month statute of limitations, this case is nevertheless a cautionary tale for all H-1B employers. Even a single complaint from one disgruntled employee could lead to a comprehensive investigation of the employer’s H-1B practices. Even though the Court of Appeals in Greater Missouri found that the DOL had overstepped in its initial investigation, the court also pointed out that the DOL may modify its investigation of a single complaint if other violations come to light.   Greater Missouri also highlights the fact that once allegations are made, the employer bears the burden of proof to prove that it has complied with the LCA attestations. Therefore, the importance of excellent record keeping cannot be overstated.

Going into 2016, it would be a good idea for any H-1B employer that is not 100% confident in its LCA records, and its ability to withstand a DOL audit of those records, to conduct a self-audit on behalf of the employer and bring to light any issues that the employer can immediately correct and ensure that it is in compliance. Such a self-audit will give the employer the confidence that it needs should the DOL ever launch an investigation and will help the employer to avoid the potential financial and reputation damage that could come from such an investigation. When it comes to DOL investigations, the proactive approach is always best.

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Are We Trying to Penalize Failure to Serve in the Syrian Army? How Recent Changes to the Visa Waiver Program Go Too Far

12/23/2015

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by David Isaacson, Associate with ABIL member, Cyrus D. Mehta
The Insightful Immigration Blog


Section 203 of Division O of the recently enacted Consolidated Appropriations Act, 2016, which funds the U.S. government for the remainder of the current 2016 fiscal year (through September 2016), also adds new restrictions on use of the Visa Waiver Program (“VWP”) that exists under section 217 of the Immigration and Nationality Act (INA), 8 U.S.C. §1187.  The title of Section 203 is “RESTRICTION ON USE OF VISA WAIVER PROGRAM FOR ALIENS WHO TRAVEL TO CERTAIN COUNTRIES”, and it appears to have been inspired by reports that the November 2015 terrorist attacks in Paris were carried out by French and Belgian nationals, many of whom had traveled to Syria.  However, the text of the law as enacted goes further than the title.  In particular, the amendments that Section 203 makes to INA 217 apply to certain people who may never have been to any of the countries with which Congress was concerned in enacting the bill, if they are nationals of one of those countries as well as a VWP country.  As this post will explain, this portion of Section 203 could have an unfair and at times truly bizarre impact.

The VWP allows citizens of certain countries designated by the Secretary of Homeland Security (formerly by the Attorney General), in consultation with the Secretary of State, to enter the United States as visitors without the need to apply for a visa at a U.S. consular post abroad.  A list of currently eligible countries is available on the Department of State website and from CBP as well.  VWP entrants are limited to 90-day admissions pursuant to INA §217(a)(1), must waive various rights to contest removal under INA §217(b), and must apply for advance clearance through the Electronic System for Travel Authorization (ESTA) run by U.S. Customs and Border Protection (CBP), but the ability to visit without going through the consular visa application process is still an attractive option for citizens of qualifying countries.

New section 217(b)(12) of the INA, as enacted by section 203 of Division O of the Consolidated Appropriations Act, 2016, adds the following requirements for use of the VWP:

(12) NOT PRESENT IN IRAQ, SYRIA, OR ANY OTHER COUNTRY OR AREA OF CONCERN.--

(A) IN GENERAL.—Except as provided in subparagraphs (B) and (C)--

(i) the alien has not been present, at any time on or after March 1, 2011--

(I) in Iraq or Syria;

(II) in a country that is designated by the Secretary of State under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. 2405) (as continued in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)), section 40 of the Arms Export Control Act (22 U.S.C. 2780), section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), or any other provision of law, as a country, the government of which has repeatedly provided support of acts of international terrorism; or

(III) in any other country or area of concern designated by the Secretary of Homeland Security under subparagraph (D); and

(ii) regardless of whether the alien is a national of a program country, the alien is not a national of--

(I) Iraq or Syria;

(II) a country that is designated, at the time the alien applies for admission, by the Secretary of State under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. 2405) (as continued in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)), section 40 of the Arms Export Control Act (22 U.S.C. 2780), section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), or any other provision of law, as a country, the government of which has repeatedly provided support of acts of international terrorism; or

(III) any other country that is designated, at the time the alien applies for admission, by the Secretary of Homeland Security under subparagraph (D).

(B) CERTAIN MILITARY PERSONNEL AND GOVERNMENT EMPLOYEES.—Subparagraph (A)(i) shall not apply in the case of an alien if the Secretary of Homeland Security determines that the alien was present--

(i) in order to perform military service in the armed forces of a program country; or

(ii) in order to carry out official duties as a full time employee of the government of a program country.

(C) WAIVER.—The Secretary of Homeland Security may waive the application of subparagraph (A) to an alien if the Secretary determines that such a waiver is in the law enforcement or national security interests of the United States.

(D) COUNTRIES OR AREAS OF CONCERN.--

(i) IN GENERAL.—Not later than 60 days after the date of the enactment of this paragraph, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall determine whether the requirement under subparagraph (A) shall apply to any other country or area.

(ii) CRITERIA.—In making a determination under clause (i), the Secretary shall consider--

(I) whether the presence of an alien in the country or area increases the likelihood that the alien is a credible threat to the national security of the United States;

(II) whether a foreign terrorist organization has a significant presence in the country or area;
and

(III) whether the country or area is a safe haven for terrorists.

Although INA §217(b)(12)(A)(i), consistent with the title of new INA §217(b)(12), bars use of the VWP only persons who have actually been present in Iraq or Syria or another country of concern, after March 1, 2011, other than as a government employee or military member of a VWP country, new §217(b)(12)(A)(ii) goes significantly further than that.  Quite apart from whether someone was present in Syria, Iraq, or another covered country after March 2011 – or has ever been present there – they will be excluded from use of the VWP if, in addition to being a citizen of a VWP-qualifying country, they are also a national of Iraq, Syria, or another covered country.  The only exception will be if a waiver is granted to a particular person under INA §217(b)(12)(C) on the basis that “such a waiver is in the law enforcement or national security interests of the United States”.

The other covered countries besides Iraq and Syria, pursuant to new INA 217(b)(12)(a)(i)(II)-(III) and (a)(ii)(II)-(III), include those designated as state sponsors of terrorism by the State Department under several named laws, as well as any countries the Secretary of Homeland Security may later designate under §217(b)(12)(D).  The State Department’s list of designated state sponsors of terrorism currently includes Iran, Sudan, and Syria.  Syria is already named in INA §217(b)(12)(a)(i)(I) and (a)(ii)(I), but the other two are not.  So in total, new INA §217(b)(12)(A)(i) currently applies to nationals of Syria, Iraq, Iran, and Sudan.

According to the Refworld web service of the Office of the UN High Commissioner for Refugees (UNHCR), Article 3.A. of the Syrian nationality law provides that in addition to other sources of nationality, “Anyone born inside or outside the country to a Syrian Arab father” has Syrian nationality.  Article 10 of that same law allows a Syrian Arab to forfeit Syrian nationality upon acquiring foreign nationality, but only “provided that a decree has been issued, based on his request and upon recommendation by the Minister [of the Interior], allowing him to abandon his nationality after having fulfilled all his duties and obligations towards the state.”  Thus, it appears that one who is born to a Syrian father, and may never have been to Syria, cannot simply avoid or give up Syrian nationality because he no longer wants it, particularly if he has not “fulfilled all his duties and obligations towards the state.”  It seems likely, particularly in light of the similar Iranian provision discussed below, that this requirement to have fulfilled one’s “duties and obligations towards the state” is a reference, at least in part, to military service obligations.

Iranian nationality law
, as reported by Princeton University’s Iran Data Portal, similarly provides for automatic acquisition of nationality through one’s father and does not allow loss of nationality at will.  Article 976, Section 2, of the law bestows Iranian nationality on “Those whose fathers are Iranians, regardless of whether they have been born in Iran or outside of Iran.”  Pursuant to Article 988, Iranian nationality can only be abandoned by those who “have reached the full age of 25”, and then only if “the Council of Ministers has allowed their renunciation of their Iranian nationality”, they have undertaken to transfer all rights they possess or may inherit to land in Iran, and “they have completed their national military service.”  Those born to Iranian fathers who are under 25, have not completed their military service, do not wish to give up land in Iran, or incur the displeasure of the Council of Ministers, are evidently stuck with their Iranian nationality whether they want it or not.

Iraqi nationality law
as reported by Refworld is not quite as bad in this regard, but Article 10(I) of that law does require a written renunciation of one’s Iraqi nationality before even one who has acquired a foreign nationality will lose his or her Iraqi nationality.  It is unclear how a child could meaningfully execute such a renunciation, and an adult who becomes a citizen of a Visa Waiver Program country may never have thought to do so, even if he or she had no intention of going back to Iraq and never did.

Sudanese nationality law
, as reported by Refworld, makes it easier to give up nationality than in the case of Iran or Syria, but not as easy as in the case of Iraq.  Section 4(1)(b)(i) includes among those who are Sudanese nationals anyone whose “father was born in Sudan.”  Under Section 10(a), the President of Sudan “may decide to revoke Sudanese nationality from” anyone over the age of majority who is proven to have “made a declaration renouncing his Sudanese nationality”, but the President is specifically given the power to “reject such a declaration if it was made during any war which Sudan participated in.” The law does not clarify whether the President can simply “decide” not to revoke nationality from one who has made a declaration of renunciation even absent such a war.

Thus, many citizens of VWP countries who lack any continuing meaningful ties to a country of concern, or never had any such ties, may be affected by the prohibition of INA §217(b)(12)(A)(ii).  Children born to a Syrian, Iraqi, Iranian, or Sudanese father, who are too young to have signed written statements giving up their citizenship, will be barred from the VWP.  Adults who have lived their entire lives in VWP countries, but were born to Syrian or Iranian fathers, and could not give up their citizenship under Syrian or Iranian law because they did not fulfill their military service obligations to Syria or Iran, will be barred from using the VWP.  This is a rather bizarre result, since one doubts that Congress would have wanted to penalize people for not serving in the Syrian or Iranian military, had the issue been thought through.  Perhaps the Secretary of Homeland Security could issue some sort of collective waiver under §217(b)(12)(C), on the basis that it would be in the national security interests of the United States not to encourage service by nationals of VWP countries in the Syrian and Iranian militaries, but that would be a rather cumbersome way to deal with a problem that should not exist in the first place.

Lest this discussion of what one might call involuntary nationality be thought overly academic, it is worth noting that U.S. immigration law does recognize, in at least one other context, the possibility that a person can be penalized for the existence of a nationality which the U.S. government believes them to hold but which they have never sought to use.  In Matter of B-R-, 26 I&N Dec. 119 (BIA 2013), an asylum applicant who had been born in Venezuela, and was a citizen of Venezuela, was denied asylum after the Department of Homeland Security (DHS) “submitted evidence that [he] was a citizen of Spain by birth, because his father was born in Spain and was a citizen of that country.”  26 I&N Dec. at 120.  Since the applicant in Matter of B-R- did not contest on appeal that he was a citizen of Spain as found by the Immigration Judge, and since he had not argued that he had unsuccessfully attempted to avail himself of the protection of Spain, he was held to be ineligible for asylum because he lacked a fear of persecution in Spain.  Matter of B-R-, 26 I&N Dec. at 122  It would seem, under the logic of Matter of B-R-, that INA §217(b)(12)(A)(ii) will apply equally to those who are citizens of Syria, Iraq, Iran, or Sudan solely because of the status of their fathers.

It is true that those barred from the VWP by their Syrian, Iraqi, Iranian or Sudanese dual nationality will not actually be barred from visiting the United States.  Rather, persons barred from the VWP on account of their dual nationality will be able to apply for nonimmigrant B-1 or B-2 (or combined B-1/B-2) visas at a U.S. consular post, just like those who are not citizens of VWP countries.  But to subject citizens of friendly nations to this additional hurdle solely because of their paternity and possibly failure to satisfy obligations to Syria or Iran, as §217(b)(12)(A)(i) in effect does in some cases, is inappropriate.  People who were born in Belgium or France or the UK or some other VWP country and have never left, or have lived in a VWP country for decades and never traveled to a country of concern, should not be precluded from using the VWP because of who their fathers were.

Moreover, because visa waivers are often offered on a basis of reciprocity, INA §217(b)(12)(A)(ii) could have a mirror-image effect on innocent U.S. citizens with the requisite parentage.  European Union regulations, for example, as pointed out by NIAC Action (the sister organization of the National Iranian American Council), already provide for the imposition of visa requirements on citizens of countries who have themselves imposed visa requirements on EU nationals.  So it is possible that the restrictions imposed by U.S. law on citizens of VWP countries who have dual citizenship in a country of concern, and may be unable to get rid of it, could be imposed by EU countries on U.S. citizens who have such dual citizenship.

Before INA §217(b)(12)(A)(ii) and the rest of Section 203 of the Consolidated Appropriations Act became law, AILA warned against hastily enacting its language in the form of what was then H.R. 158 unless the bill were modified and clarified in a variety of respects (including the nationality provision and other aspects such as legitimate travel to the countries of concern by journalists and humanitarian workers and so on).  It is unfortunate that Congress did not heed this warning.  The statute should be amended, whether by this Congress or by a future Congress, so that it does not bar from the VWP nominal citizens of covered countries who have not recently been to those countries.  Other changes to the language produced by the same rushed process that gave us the above-discussed absurd results, although outside the scope of this blog post, may also be warranted.

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How To Stop Illegal Immigration

12/14/2015

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Charles Kuck, ABIL Past President
Musings on Immigration


In the midst of the never ending political season, we hear much rhetoric about immigration, and what candidates will "do" to fix what everyone considers to be a broken (not failed, just broken) immigration system.  Most of the candidates, however, put a condition on fixing this broken system by saying that:  "FIRST, we must secure the border and end illegal immigration, then we will talk."   What will it take to accomplish this precondition to solve a the acknowledged problem.

There are two types of "illegal" immigration to the United States.  The first is what everyone already considers to be illegal immigration--those who enter the United States without a visa through our thousands of miles of borders.  Proposals to fix this particular type of illegal immigration range from alligators and moats, to automatic firing machine guns, to “beautiful” walls, to limitless numbers of border patrol agents. 

The second type of "illegal" immigration involves individuals who enter the United States legally on visas or the visa waiver (ESTA) program, and who then overstay their allotted time (typically either 6 or 3 months).  Solutions proposed to this type of illegal immigration include RFID chips, monitoring by immigration agents, new immigration exit control stations,  and even searching for and locating overstays. 

What no one seems to talk about is how these proposed solutions are supposed to stop illegal immigration.  How does putting 20,000 more border patrol agents stop illegal immigration?  Slow it down?  Sure.  Stop it completely?  Not a chance. And, if our “leaders” will not even attempt to deal with fixing our broken system until there is zero illegal immigration we will never have immigration reform.  Think about that when you hear a politician say that they will not consider any fix to the system until the border is "secure," (whatever they mean by that.)

But, there is a way to stop illegal immigration, both the undocumented kind, and the kind that results from visa overstays.  Why do we have illegal immigration in the first place?  That is simple.  We have illegal immigration because people want to live in the United States but do not have a viable legal method to immigrate.  It’s basically about supply and demand.  As we learned in the recent tragedy in California, people intent on doing us harm do not need to come illegally, they can use our current broken legal immigration system to come here. 

People want to come to either be with their family that is already here, work in a job that is going to both support their family in a way that cannot be done in their birth country and that is not being filled by a native born U.S. citizen, or because they are afraid that remaining in their home country is so dangerous to their lives that they risk coming without a visa.  There are also investors, entrepreneurs, and skilled professionals and workers who we need and want to have in the United States to grow our economy and maintain our status as the leader of the free world.  Frankly, we should be very worried if the day ever comes that no one wants to come to the United States.  Ask North Korea how that works out.  

Knowing why people come illegally means we can create a system to deal with immigration in a way to secures our borders, secures our freedom, and secures our economic and societal well-being.  How?  By addressing the flaws in our legal immigration system at the same time we deal with the issues related to securing the border.  As Congress is showing right now as it votes on piecemeal fixes to our EB-5 Immigrant Investor Program, the H-1B and L-1 visas, and the Visa Waiver program, we are fully capable of dealing with legal immigration while we strengthen our borders and enforcement.  A politician who tells you that we cannot even talk about legal immigration or even legalization until after the border is secured is nothing more than a political coward.

For example, our current legal immigration system allows employers to sponsor up to 10,000 green cards a year (nationwide and including spouses and children) for "unskilled workers.”  You know them as the people who work in chicken processing plants, hotels, restaurants and landscaping.  Obviously, just in Georgia there are hundreds of thousands of undocumented immigration doing these jobs.  Yet, if an employer wanted to "sponsor" such a worker, the wait time is immense. Why should an employer who needs someone today to do the work, wait 10 years to have person start working?  Do you see the problem with our current legal system.  The numbers of visas available, the types of visas available, and the "line" for available visas all tell us the same thing--an immigration system first created almost 65 years ago, and last updated 25 years ago, cannot and does not work for a 21st century economy.  

What do we need to do to stop illegal immigration?  Have a legal immigration system that is easier than immigrating illegally.  I am not talking about open borders, but rather about a controlled legal immigration system that is directed by market forces coupled to our unemployment rate.  We need a legal immigration system that actually reflects the needs of the 21st century family, employer, and immigrant.  There will be some who want to stop all immigration, that want to take a "time out."  Ask Japan how that has worked.  Our reality is that a functioning legal immigration system, with enough visas and a simplified processes that matches willing workers and employers, that reduces wait times for immediate family members to short processing intervals, that accounts for our treaty obligations in accepting refugees and asylees, and one which forgives people for mistakes made decades ago and allows them to be brought into the fold of the American fabric will be part of maintaining the greatness that is the United States of America.

We are better than the rhetoric we are hearing from our presidential candidates.  As voters which should demand men and woman of integrity, courage, and vision to lead us.  Let's hope we get what we need.
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San Bernardino Attacks Fallout: Will it Get Harder for Americans to Marry Foreign Spouses Overseas?

12/14/2015

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by Cyrus D. Mehta, ABIL Lawyer

The Insightful Immigration Blog

The USCIS has promised to review the K-1 visa procedures after the San Bernardino attacks since one of the attackers entered on this visa. The K-1 visa is commonly used by a fiancé of a US citizen spouse to enter the United States, and one of the conditions (with some exception) is that the parties must have met within the past two years prior to filing the application. Once the fiancé enters the United States, he or she must get married to the US citizen within 90 days, and then apply for the green card.

While it is unfortunate that a foreign terrorist used the K-1 visa, this does not mean that the K-1 visa should be restricted for all fiancés. The K-1 visa provides the only access for a fiancé to enter the US. While one can enter the United States as a visitor to get married, one cannot also enter with the intention of adjusting to permanent residence status in the United States. Curtailing the K-1 visa will also limit the ability of US citizens to seek foreign spouses. Moreover, the K-1 visa procedure already has in built rigorous screening, and this author has known of delays due to security clearance of K-1 applicants even prior to the California terrorist attacks that left 14 people dead.

As an alternative to the K-1 visa, a US citizen can marry a foreign spouse and directly petition for an immigrant visa. There is only a marginal difference in the time it takes under both the processes.  From the point of view of not waiting to celebrate the marriage, it is quicker. However, in terms of processing time, it takes about the same amount of time for a K1 visa or marriage based I-130 petition to get approved, and the same amount of time for the scheduling of the interview at the US consulate. Once the K-1 visa is issued, the parties have to get married in the United States within 90 days prior to filing the green card application (if they get married after 90 days, the I-130 petition must be filed). Thus, there is an additional extra step before the applicant can receive the green card when compared to a beneficiary of a spousal I-130 visa petition who is admitted into the United States as a permanent residence.

Even if the K-1 visa is not curtailed by Congress (and hopefully that will not be the case), there is bound to be more scrutiny after the shootings. To be eligible for the K-1 visa, it is important that there be no legally valid marriage as the applicant must remain a fiancé. Even religious marriages that are legally recognized as marriages may disqualify the applicant.  The authorities will try to ferret out cases if they discover that the parties got married prior to the issuance of the K-1 visa. In traditional cultures, a marriage is generally preferred, and if an applicant is not permitted to be with the prospective US citizen spouse without a marriage, one should not file the K-1 visa and directly file for a spousal immigrant visa. In fiscal year 2014, only 4 K-1 visas were issued in Saudi Arabia as compared to 7, 228 K-1 visas in the Philippines. Still, even if there is no marriage, the authorities will look more closely after the San Bernardino shootings to see whether this is a bona fide relationship, which is harder to prove when there is no marriage. There will also be more security checks and delays relating to the K-1 visa, although even in the past, delays as a result of security checks were extremely frequent.

The essential point that must be made is that terrorism is separate from immigration. While additional screenings for K-1 visa applicants will be inevitable, they must not in effect nullify the K-1 visa. By the same token, beneficiaries of marriage-based I-130 petitions should also not get excessively delayed as a result of additional scrutiny. Both the K-1 and I-130 procedures take upward of six months, and fiancés as well as spouses from countries with predominant Islamic populations have in any event been impacted since 9/11. It has also been revealed that the shooter who received the K-1 visa also talked openly on social media about violent jihad. Those social media comments were not subject to the security checks that she underwent, and in the future, the authorities are more likely to pry into one’s comments on social media. While comments relating to causing violence should be taken seriously in the visa application process, it is hoped that harmless comments made in the exercise of free speech in opposition to US policy or events, such as feeling disgust about Donald Trump’s statements regarding banning Muslims or criticizing US drone policy, should not be used as a basis to play “gotcha” during the security screening of a visa applicant.

US citizens must be free to marry foreign spouses of their choosing. Imagine if Trump’s desire to ban Muslims from being admitted become reality. Americans will not be able to bring in fiancés or spouses who are Muslims. Note that this has de facto been the case, exemplified in the Supreme Court case of Kerry v. Din, where the plurality of the court upheld the limited power of courts to review adverse consular decisions. In Kerry v. Din, the foreign national spouse in Afghanistan was denied an immigrant visa by citing the terrorism ground of inadmissibility, INA 212(a)(3)(B), without any further explanation.

US immigration law is already very complicated, made further convoluted with security checks since 9/11. There is no need for Congress to curtail the K-1 visa, which in turn will make it harder for Americans to marry foreign spouses abroad. It is hard for an employer to sponsor a foreign national employee for a green card as the employer must certify that it was not able to find an available and willing US worker before being able to sponsor a foreign employee for a green card. The reason for this is that there is a countervailing policy interest in protecting American jobs.  It would be absurd to similarly restrict an American’s ability to marry and sponsor a foreign spouse as a result of countervailing security concerns. One unfortunate misuse of the K-1 visa, which has otherwise worked very well, should not be the reason to make it harder for Americans to marry foreign spouses overseas.

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An Immigration Opportunity Lost: USCIS Stiffens on Job Flexibility

12/13/2015

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by Angelo Paparelli, Past ABIL President
Nation of Immigrators
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[Blogger’s Note:  This post is submitted as a necessarily-lengthy formal comment to the November 20, 2015  draft guidance of U.S. Citizenship and Immigration Services, PM-602-0122, interpreting the phrase, “the same or [a] similar occupational classification” as used in the “increased job flexibility” provisions of Immigration and Nationality Act (INA) §§ 204(j) and 212(a)(5)(A)(iv). This comment incorporates by reference the content of all hyperlinked words and phrases below.  [By email: [email protected]
[Attention:  Hon. León Rodriguez, Director, U.S. Citizenship and Immigration Services
[SUBJECT: Comment of Angelo A. Paparelli to Draft Policy Memorandum PM-602-0122, “Determining Whether a New Job is in ‘the Same or a Similar Occupational Classification’ for Purposes of Job Portability, Immigration and Nationality Act (INA) §§ 204(j) and 212(a)(5)(A)(iv), ” as provided in Public Law 106-313, the American Competitiveness in the 21st Century Act (AC21).]


An Immigration Opportunity Lost:
USCIS Stiffens on Job Flexibility
A frisson of fear coursed through me when I learned that U.S. Citizenship and Immigration Services (USCIS) would issue new policy guidance on “job flexibility” — the statutory right of some long-patient green card applicants to change jobs or careers within the same or a similar occupational classification.   Congress introduced this limber possibility in the American Competitiveness in the 21st Century Act (AC21), S.2045 , at a time when the legacy agency, the Immigration and Naturalization Service (INS), still held sway over immigration-benefits decisions.
The better way — APA Notice-and-Comment Rulemaking.  In lieu of USCIS policy guidance, my strong preference would have been that the successor immigration agency pursue notice-and-comment rulemaking under the Administrative Procedure Act (APA). I worried that the more relaxed exercise of issuing draft policy guidance and inviting public comments would become yet another sad episode in the continuing manifestation, particularly in the last ten years, of America’s new form of extra-constitutional government, the Administrative State. Increasingly, the Administrative State — a form of government by bureaucracy “under which [federal] administrative agencies are able to push policy toward their preferences rather than being wholly faithful to their legislative principals” — has become the unwelcome default mode of lawmaking and governance in this era of Congressional impasse.
The Road to Good Intentions. As USCIS forecasted in November 2014 (Item 4 in its list), the forthcoming interpretation would “[p]rovide clarity on adjustment [of status] portability [in order] to remove unnecessary restrictions on natural career progression and general job mobility [and] provide relief to workers facing lengthy adjustment delays.” (Emphasis added.) Despite these soothing words, I foresaw that an admittedly informal “flexibility” practice that had worked reasonably well under a generally relaxed interpretation announced in a series of five agency advisories, e.g., here and here, would ossify in the hands of the current crop of policy formulators at USCIS’s headquarters.  Unfortunately, these fears have come home to roost. As this blog post and comment will show, the November 20, 2015 draft guidance, PM-602-0122, is as stiff and lacking in vitality as a corpse in rigor mortis.
The Pre-AC21 Status Quo. When Congress enacted AC21, it added two provisions promoting “job flexibility” for long-delayed adjustment of status (green card) applicants.  In doing so, the House and Senate tipped their hats to Buddha’s fundamental Law of Impermanence, the precept that, over time, stuff happens. In other words, as William Gladstone, the noted British statesman, reportedly said, “justice delayed is justice denied.”
Congress knew when it passed AC21 that INS decisions on employment-based applications for adjustment of status, the benefit of gaining green card status while in the U.S., were taking far too long.  In a predecessor bill to AC21, the “Immigration Services and Infrastructure Improvements Act of 2000”  (S. 2586), Senator Dianne Feinstein, its lead author, along with several other senators, acknowledged what immigration stakeholders of the era had long known:

[Section 2](a) Findings.–Congress makes the following findings:
. . .
(3) The processing times in the Immigration and Naturalization Service’s other immigration benefits [cases, i.e., other than naturalization applications] have been unacceptably long. Applicants for family- and employment-based visas are waiting as long as 3 to 4 years to obtain a visa or an adjustment to lawful permanent resident status.
(4) In California, the delays in processing adjustment of status applications have averaged 52 months. In Texas, the delays have averaged 69 months. Residents of New York have had to wait up to 28 months; in Florida, 26 months; in Illinois, 37 months; in Oregon, 31 months; and in Arizona, 49 months. Most other States have experienced unacceptably long processing and adjudication delays. (Emphasis added.)

Clearly, Congress recognized when including in AC21 a “Title II” (also entitled, the “Immigration Services and Infrastructure Improvements Act of 2000”) that agency processing delays were forcing indentured adjustment applicants to wait years longer than the targeted 180-day period in the new law’s job-portability provisions:
[Sec. 202](b) POLICY.--It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application, . . .
SEC. 203. DEFINITIONS.
In this title:
(1) BACKLOG.—The term ‘‘backlog’’ means, with respect to an immigration benefit application, the period of time in excess of 180 days that such application has been pending before the Immigration and Naturalization Service.
 (2) IMMIGRATION BENEFIT APPLICATION.—The term ‘‘immigration benefit application” [includes] any application . . . to . . . adjust . . . status . . . under the Immigration and Nationality Act. (Emphasis added.)

Thus, the 106th Congress that enacted AC21 clearly knew about inordinate green card delays when it provided “job flexibility” relief to beneficiaries whose adjustment of status applications had been “long pending” — meaning those remaining unadjudicated for more than 180 days.  Thus, it allowed a worker (sponsored for a green card in any one of four employment-based immigrant visa preference categories) to change jobs or employers after the adjustment application had been pending more than six months.  The only AC21 condition imposed, however, is that the new position must be in the “same or [a] similar occupational classification” as the one described in the employer’s labor certification application or immigrant visa petition.
Need for a Regulation. Undoubtedly, publishing a proposed USCIS regulation and allowing formal comment from stakeholders before finalizing the rule would be a welcome approach.  To be sure, prior agency guidance left a few lingering ambiguities requiring clarification and did not establish procedures which could and should be formalized in the rulemaking process.  For example, some adjustment applicants probably remained tethered unhappily to Employer #1 because they feared that USCIS might disagree about job similarity and refuse the long-awaited green card.  Moreover, as I proposed in “‘Parting is Such Sweet Sorrow’: Musings on Adjustment of Status Portability” (Musings), Employer #2 gets a windfall, the hiring of an incipient permanent resident already granted open-market authorization pending the adjudication of the adjustment application.  But Employer #2 might still lose if costly training which it provided is wasted or its project engagements are impaired by an adverse USCIS adjudication on the same-or-similar-job issue.  Even worse, Employer #1 — the firm that did the heavy trudging through the red tape and suffered the time required to traverse trap-laden Department of Labor (DOL) and USCIS rules, incurring legal fees and other costs  en route — becomes collateral damage in the war for talent as it loses the services of the the porting worker.
The Equitable Solution — Cell Mitosis. APA rulemaking could thus provide necessary equitable relief to all three deserving parties (the adjustment applicant and Employer #1 on the one hand, and Employer # 2 on the other) by adopting some variant of the “cell mitosis” theory I proposed in Musings.
Just as cells dividing through mitosis inherit cellular DNA, pipeline immigration benefits could likewise be “inherited.”  If mitosis principles were to be applied, the porting employee and Employer #2  would win because their cellular “inheritance” endows green card status, and in an increasingly overheated labor market, the employment of an in-demand worker.  But Employer #2 should not lose everything, given that the DOL’s test of U.S. worker unavailability for the position in question had already been passed.  Instead, Employer #2 could “inherit” (a) the earlier “priority date,” the place in the immigrant visa waiting line, which Employer #1 had reserved for the departing worker, and (b) the right to petition for a comparably qualified non-citizen candidate to fill the same, now-vacant job and to help the new hire and his or her immediate relatives gain green cards through adjustment of status.  Thus, subject to any waiting period in the green-card queue and the same numerical limits of the immigrant visa quota, the porting employee, his or her equally qualified substitute, and Employers #1 and #2, would ultimately gain salutary immigration benefits.  Why? Because they earned them under AC21 and a flexible, job-flexibility final regulation — a rule well within USCIS’s regulatory authority to prescribe.
To those at USCIS or elsewhere who might argue that Employer #2’s “inheritance,” as I’ve described it, would contravene the DOL regulation, 20 CFR § 656.12(a), prohibiting the “offer [of an approved labor certification] for sale, barter or purchase by individuals or entities,” this blogging promoter of applying mitosis principles in the immigration ecosphere would respond that that horse has already left the barn.  In practical effect, AC21’s portability provisions already refute the DOL notion, also espoused in § 656.12(a), that an approved labor certification is not “an article of commerce.” The statutory and commercially-valuable right of adjustment portability effectively permits Employer #2 to “purchase” (though a “same or similar” job offer accepted by the porting worker) the intangible proprietary right to employ the individual as long as s/he has secured the interim adjustment benefit of a USCIS-issued Employment Authorization Card or another form of work permit.
The Need for Transparency. An APA-compliant proposed rule would also make all stakeholder comments publicly accessible on Regulations.gov, and USCIS would be required to elucidate in writing its rationale for accepting some suggestions and eschewing others. This transparency is unlike the current USCIS practice which provides no access to public comments and no explanation of why stakeholder proposals to change draft guidance were accepted or rejected in the final policy.  Regrettably, this behind-the-walls process of willful obscurantism is likely to apply to the finalized USCIS adjustment-portability policy once the comment period for the November 20, 2015 draft guidance (the Draft) expires on January 4, 2016.
What’s Wrong with the USCIS Draft Memorandum? As a partial remedy to the agency’s opaqueness in declining to publish stakeholder comments on job-flexibility, this blog lists several objections and suggest improvements to the Draft:

1.  The Draft ignores AC-21’s legislative history of abhorrence to immigration case backlogs and the resulting need for job flexibility.  As noted above, Congress clearly saw and tried to mitigate the interrelated problems of bureaucratic delays and the likelihood of changed circumstances.  Delays in adjustment processing had grown unreasonably — up to as long as 69 months.  To lessen the foreseeable risk that changed job circumstances would cause the loss of green-card eligibility, Congress enacted a law which — in the words of USCIS quoted above — would ” [(1)] provide clarity on adjustment [of status] portability[,] [(2)] remove unnecessary restrictions on natural career progression and general job mobility, [and] . . . [(3)] provide relief to workers facing lengthy adjustment delays.”
2.  The Draft cherry-picks an especially strict definition of the word, “similar,” which AC21 left undefined.  Although the USCIS cites Taniguchi v. Kan Pacific Saipan, Ltd., 132 S. Ct. 1997, 2002-03 (2012), for the principle that “when a term goes undefined in a statute, an agency ordinarily should ‘give the term its ordinary meaning,'” its proffered Draft violates the “ordinary meaning” principle.  The Draft opts for the online version of a British dictionary, the Oxford English Dictionary (OEM), publicly inaccessible except by paid subscription, which apparently defines “similar” as “having a marked resemblance or likeness.”  USCIS also cites the second definition of “similar” in the American online dictionary, Merriam-Webster.com (MW), to mean “alike in substance or essentials”  — a definition clearly less restrictive than the OEM‘s “marked resemblance” formulation.  The Draft does not explain, however, why it omitted MW‘s first definition of “similar,” to wit, “having characteristics in common : strictly comparable [emphasis added].”  Perhaps the omission is an example of the Administrative State where agencies “push policy toward their preferences.”  This stricter definition, however, would contravene the Supreme Court more recent application of the rules of statutory construction, Utility Air Regulatory Group v. EPA, a 2014 decision which restricted administrative-agency interpretations of statutes in the following words:

Under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,  . . . we presume that when an agency-administered statute is ambiguous with respect to what it prescribes, Congress has empowered the agency to resolve the ambiguity. The question for a reviewing court is whether in doing so the agency has acted reasonably and thus has “stayed within the bounds of its statutory authority.” . . . .
Even under Chevron‘s deferential framework, agencies must operate “within the bounds of reasonable interpretation.”  And reasonable statutory interpretation must account for both “the specific context in which … language is used” and “the broader context of the statute as a whole.” Robinson v. Shell Oil Co.  A statutory “provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme … because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.”  Thus, an agency interpretation that is “[inconsistent] with the design and structure of the statute as a whole,” does not merit deference. (Citations omitted; emphasis added.)

Instead of requiring the stricter showing of “marked resemblance,” USCIS should give the phrase, the “same or similar occupational classification,” its ordinary meaning, namely that a job would be “similar” to another if the subject matter expertise required in each of the two jobs, or the stated duties, skills and qualifications, are fairly “comparable.”   Thus, the Shakespearean comparison (“Shall I compare thee to a summer’s day?”) would not withstand a reasonable “comparability” analysis, but an engineer employed in a huge multinational enterprise who morphs in today’s gig economy into a self-employed engineering consultant or a professor of engineering seeking multiple teaching assignments, in most cases should (not the permissive “may” in the Draft) be accorded AC21 job-flexibility benefits.
3. The Draft misapplies and gives undue probative weight to the DOL’s Standard Occupational Classification (SOC) system — a complicated, arbitrary and abbreviated composite of occupational classifications not developed for the legislative purpose of AC21 job-flexibility analysis.   Rather the Labor Department’s Bureau of Labor Statistics (BLS) intended the SOC to permit statistical analyses for use by “Federal statistical agencies to classify workers . . . for the purpose of collecting, calculating, or disseminating data.”   As the BLS explains the SOC system, however, its shortcomings for immigration adjustment job-flexibility analysis becomes apparent:

All workers are classified into one of 840 detailed occupations according to their occupational definition. To facilitate classification, detailed occupations are combined to form 461 broad occupations, 97 minor groups, and 23 major groups. Detailed occupations in the SOC with similar job duties, and in some cases skills, education, and/or training, are grouped together.
Although the Draft treats the SOC like a veritable Code of Hammurabi, or revered totem (“this memorandum instructs [Immigration Services Officers] on how they may use the [DOL’s] . . .SOC . . . codes”),  USCIS should not prescribe it as the exclusive source of job-similarity comparisons.
4. The Draft fails to offer reasonable alternatives to the SOC.  USCIS should offer a variety of alternative ways in which job-similarity, with the SOC listed as merely one of other acceptable measure of comparability, can be established by the “preponderance of the evidence” standard of proof.  For example, given that USCIS views the DOL as authoritative in the evaluation of job comparisons, then the AC21 flexibility analysis should also allow use of the Labor Department’s easily applied  “substantially comparable” job or position test used in 20 CFR § 656.17(i)(5)(ii) of its PERM labor certification regulation:

A “substantially comparable” job or position means a job or position requiring performance of the same job duties more than 50 percent of the time. This requirement can be documented by furnishing position descriptions, the percentage of time spent on the various duties, organization charts, and payroll records.
The application of a “substantially comparable” or the equivalent “more than 50%” rule is already familiar to Immigration Service Officers who must routinely apply this test in many other visa categories.  Consider the L-1A nonimmigrant and EB-1(3) tests for intracompany or multinational managers or executives whose employer must show that the foreign candidate has been and will be “primarily” engaged in managerial duties or executive responsibilities.  Similarly, treaty-based E-1 visa applicants must show that the treaty national or entity is “principally”engaged in trade of goods or services between the treaty country and the United States.  USCIS interprets the adverbs, “primarily” and “principally,” as requiring a greater than 50% bright-line test.  Indeed, the “preponderance of the evidence” test applicable in virtually all immigration-benefits decisions is itself a “more than 50%” test.  Furthermore, the “substantially comparable” test is much more easily and quickly decided than the abstruse SOC system.  As 20 CFR § 656.17(i)(5)(ii) notes, the “substantially comparable” measure “can be documented by furnishing position descriptions, the percentage of time spent on the various duties, organization charts, and payroll records.”
5.  The Draft expressly supersedes all job-flexibility discussions in five prior INS and USCIS advisories.  By revoking prior guidance, the Draft makes it uncertain whether earlier pronouncements allowing self-employment as an approved basis for adjustment portability, holding that multinational managers or executives can port and/or disregarding as irrelevant any issue of whether Employer #2 can satisfy the otherwise applicable standard of “ability to pay” the wage stated in the labor certification or immigrant visa petition will reappear in the final job-flexibility policy guidance.
6.  The Draft offers no explanation of procedures to tee-up the granting of a request for adjustment of status job-flexibility benefits.  Given the Draft’s revocation of the prior adjustment portability policy memos, USCIS fails to say whether the usual way to invoke adjustment portability — the adjustment applicant’s submission, after having ported, of a letter from Employer #2 demonstrating job similarity — will continue to be required.  The Draft also offers no clue whether USCIS will establish, before a porting occurs, a form-based process for the adjudication of a prospective change of job or employer.  Clearly, USCIS should obviate the need for the current bet-the-green-card procedure whereby the adjudication of job similarity is only available after a change of job or employer has already occurred. Hence, the Draft’s lacunae of guidance on procedures and its dubious over-reliance on the SOC makes job moves by the adjustment applicant still the risky business it has always been.

* * * * *
President Obama and USCIS deserve praise for their desire to help adjustment applicants change jobs or employers more freely.  Unfortunately, however, the agency’s chosen vehicle of movement — an unduly cramped interpretation of AC21’s job flexibility provisions, coupled with its unwarranted fixation on the SOC — will freeze in place AC21’s intended beneficiaries and thereby impair the virtuous economic goal of enhanced worker mobility.  The USCIS should scrap the Draft and publish a proposed job flexibility regulation.
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The "U" Visa for Crime Victims--A Major Backlog Has Arisen

12/9/2015

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Charles Kuck, ABIL Past President
Musings on Immigration


The "U" visa program created as part of the Violence Against Woman Act (VAWA) was, and is, a good idea and an effective tool for law enforcement.  As a society, we want people, (including undocumented people) to come forward and report crimes, both as victims and witnesses, in order to bring law enforcement into situations and locations that can assist innocent victims, punish criminals and fight crime.  The "U" visa is available to 10,000 people a year who are harmed as victims, or indirect victims, of typically violent crimes.   Once the "U" visa is issued, the individual is converted to legal status in the United States, and after three years in this status can seek lawful permanent residence (a green card).  That said, the program itself, like every other program that Congress caps with an artificially limited number of visas, has become a shadow of its former self.

In just released Fiscal Year 2015 numbers, USCIS let the public know that more than 110,303 "U" visa applications are pending decision by the USCIS.  There are also 17,694 U visa petitions that were actually approved during Fiscal Year 2015.  The USCIS approves around 80% of the "U" visa applications that it receives (on average).  This means, that if the USCIS receives zero "U" visa applications in Fiscal Year 2016 (which of course is not going to happen), there will be about 100,000 people with approved "U" visa petitions waiting for the 10,000 "U" visa slots that can be actually issued each year.  That means for new applicants in Fiscal Year 2106, there will be at least a 10-12 year wait for issuance of the "U" visa status, with permanent residence at least 13 years away.

That is not the worst of these numbers.  Each year for the last six year we have seen an increasing number of "U" visa petitions filed.  In Fiscal Year 2015, USCIS received 52,666 applications. This number alone is almost a 5 year supply of "U" visas! If this trend continues, at the end of Fiscal Year 2016, there will be a 15 year supply for "U" visa approved petitions, with permanent residence and later citizenship almost a decade beyond that.  Twenty Five years; think about that.

What does USCIS do for approved applicants if there are no "U" visa petitions available to be distributed?  It puts these individuals on "Deferred Action" status, which, technically speaking is not a status.  This status comes without the right to travel at this time (something that a "U" visa status holder has). And, while an approved applicant with "Deferred Action" can receive a work permit, the permit typically must be approved every two years.  It is essentially decades of temporariness with the hope of a resolution that is years away.

So, once again, we have a congressionally created program that started with good intentions, but has ended up in crisis.  Victims of crime are real people.  They come forward seeking law enforcement assistance and seeking justice under our legal system.  Unfortunately, these victims of crime will not receive any timely justice from the immigration system.
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Winter Blues: Freezing the Age of a Child Under the December 2015 Visa Bulletin

12/6/2015

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by Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

Although the State Department Visa Bulletin announced dual dates on September 9, 2015 – a filing date and a final action date – effective October 1 2015, the government has yet to clarify how these dates protect a derivative child from aging out (turning 21) under the Child Status Protection Act. If a derivative child turns 21, the child cannot automatically obtain permanent residency status with the parent, and thus the CSPA freezes the age of a child below 21.

The new filing date in the Visa Bulletin allows for the early filing of I-485 adjustment of status applications if eligible applicants are in the United States and the filing of visa applications if they are outside the country. The final action date will be the date when green cards can actually be issued.  The filing date thus allows for the early submission of adjustment applications prior to the date when green cards actually become available. Similarly for those who are outside the United States and processing for an immigrant visa overseas, the filing date should allow applicants to submit the DS 260 immigrant visa application.

Prior to the October 2015 Visa Bulletin, the cut-off date was based on the government’s ability to issue a green card during that month.  While there has been no official guidance, and many of the practice advisories issued make scant reference, it is important that we
 advocate that the age of the child also be protected under the CSPA at the time that the filing date becomes current for the applicant. A child ceases to be considered a child upon turning 21, and can no longer immigrate as a derivative with the parent, especially when the parent is likely to be caught in the backlogs. It is thus important that the CSPA is made applicable to protect the child’s age at the time of the earlier filing date. This will also promote legal consistency and harmony with respect to the broader definition of visa availability in the new visa bulletin. [Readers are cautioned not to expect that this will happen, and the whole purpose of this blog is to advocate that children get CSPA protection under the new visa bulletin.]

Notwithstanding the
 abrupt retrogression of the filing dates on September 25, 2015 that were first announced on September 9, 2015, thus impeding the ability of thousands who were ready to file adjustment applications on October 1, 2015,  the dual date system still exists, albeit not as advantageously as before. The Visa Bulletin has been further undermined after the USCIS was given authority to determine filing dates for purposes of filing adjustment applications. One has to now also refer to http://www.uscis.gov/visabulletininfo to determine whether adjustment applicants can use the filing dates each month established by the State Department in the Visa Bulletin. For the first two months in 2015, October and November,  the USCIS indicated that the filing dates could be used, but for December 2015, the USCIS abruptly announced without explanation that only the final action date could be used for filing I-485 applications. This has caused further confusion regarding the applicability of the CSPA.

As background, INA 245(a)(3) only allows for the filing of an I-485 adjustment of status application when “an immigrant visa is immediately available.” Visa availability will no longer be defined by when visas are actually available. The Visa Bulletin in its new reincarnation now views it more broadly as “dates for filing visa applications within a time frame justifying immediate action in the application process.” The
 USCIS similarly views visa availability opaquely as "eligible applicants" who "are able to take one of the final steps in the process of becoming U.S. permanent residents."  These new interpretations provide more flexibility for the State Department to move the filing date even further, and make it closer to current. Thus, the government’s argument that it made a mistake when announcing the more advantageous filing dates on September 9, 2015 in the lawsuit, Mehta v. DOL, makes no sense.  Indeed, visa availability ought to be based on just one visa being saved in the backlogged preference category, such as the India EB-3, like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving day is pardoned by the President and not consumed, similarly one visa can also be left intact rather than consumed by the foreign national beneficiary.  The new way of interpreting visa availability makes it possible to file an adjustment of status application earlier than before, along with all the accompanying benefits that arise, such as job portability under INA 204(j), work authorization for the principal and derivative family members and travel permission. Similarly, CSPA protection should also be made available to children who may age out at the time of the earlier filing date so as to maximize the chance for children to obtain their green cards with the parent.

I strongly advocate that if there is now a broader interpretation of visa availability for purpose of filing an I-485 adjustment application at the filing date, this same filing date should lock in the CSPA age too. Otherwise the whole scheme collapses like a house of cards if there is no consistency. If there must be visa availability to file an I-485 under INA 245(a)(3) in order to enjoy 204(j) portability, it makes sense to use the same new interpretation of visa availability to lock in the child’s age at the filing date.  Imagine filing an I-485 for a minor at the time of the filing date who is not protected under the CSPA, and once s/he ages out, is no longer eligible to even be an adjustment applicant, and has to leave the US while the parents can continue as adjustment applicants.

There’s also no point in providing the earlier filing date in the new visa bulletin for immigrant visa applicants overseas, otherwise they get no tangible benefit, except to be able to lock in the child’s age earlier at the time of the filing date under the CSPA.

Under INA 203(h)(1)(A), which codified Section 3 of the CSPA,  the age of the child under 21 is locked on the “date on which an immigrant visa number becomes available…but only if the [child] has sought to acquire the status of an alien lawfully admitted for permanent residency within one year of such availability.” If the child’s age is over 21 years, it can be subtracted by the amount of time the applicable petition was pending. See INA 203(h)(1)(B).

Under INA 245(a)(3), an I-485 application can only be filed when an  “immigrant visa is immediately available.”

Therefore, there is no meaningful difference in the verbiage relating to visas availability – “immigrant visa becomes available” and “immigrant visa is immediately available” under INA 203(h)(1)(A) and INA 245(a)(3) respectively. If an adjustment application can be filed under the new interpretation of visa availability pursuant to 245(a)(3), then the interpretation regarding visa availability under 203(h)(1)(A) should be consistent.

Even though the filing date may not be available for submitting an adjustment application under December 1, 2015, according to the USCIS, this should not preclude an applicant from claiming the earlier filing date for purposes of freezing the age of the child below 21 years. In order to meet all the conditions of freezing the age under the CSPA, the child should have also sought to acquire lawful permanent residency within one year of visa availability, which is arguably the filing date. However, what if the USCIS does not allow usage of the filing date for I-485 applications for more than a year? Does this mean that the child’s age cannot be protected under the CSPA? One possibility is to seek permanent residency through consular processing, and file Form I-824, which enables consular processing of an approved I-130 or I-140 petition. The filing of Form I-824 would constitute evidence of seeking to acquire permanent residency within one year of visa availability, which is when the filing date became current. Even if the parent and child are unable to file an adjustment application, or even be able to obtain a green card imminently, filing the I-824 at least clearly fulfills the condition of seeking to acquire permanent residency within one year of visa availability.  Once the USCIS allows usage of the filing date, an adjustment application can subsequently be filed, and the filing of the I-824 application to initiate consular processing would constitute solid evidence of the applicant seeking permanent residency within one year of visa availability.

Until there is more clarity, it makes sense to take advantage of the earlier filing date to protect the age of the child, and then seek to acquire permanent residency within one year of the filing date becoming current. Of course, given that there is no harmony between the DOS and the USCIS with respect to availability of filing dates, it may be possible to also claim the final action date for purposes of protecting the age of the child, and then seeking to acquire permanent residency within one year of the final action date becoming current. I had suggested in my
 earlier blog that permanent residency should only be sought within one year of the filing date becoming current so that the concept of visa availability be applied consistently. However, given that the USCIS has not permitted the filing of I-485 applications in the month of December 2015, although the State Department has released a filing date, a child applicant should take advantage of either the filing date or the final action date for purposes of CSPA protection.

There has undoubtedly been much confusion caused by the new Visa Bulletin that took effect on October 1, 2015. While there is an ongoing legal fight to challenge the government’s abrupt reversal of the filing dates on September 25, 2015, we must also force the government to agree with the interpretation that the CSPA should lock in a child’s age based on the new filing date. In the months when the USCIS does not permit adjustment submissions based on the filing date, applicants should still be able to lock in the CSPA age based on the filing date in the Visa Bulletin, as well as based on the final action date, whichever is more advantageous. It is really surprising that the government has said nothing thus far, and hopefully, this blog should prompt a discussion

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